Pursuant to Ind.Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case. 

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

GARY R. ROM

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENNY GREEN, )

)

Appellant, )

)

 vs. ) No. 49A02-1107-CR-611

)

STATE OF INDIANA, )

)

Appellee. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Jeffrey Marchal, Judge Pro Tempore

Cause No. 49G06-1010-FA-80292

March 22, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 
2

Kenny Green (“Green”) was convicted in Marion Superior Court of Class A 

felony rape and Class D felony auto theft and was ordered to serve an aggregate fortyyear sentence in the Department of Correction. Green appeals arguing that the evidence 

is insufficient to support his rape and auto theft convictions, and that his sentence is 

inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

On May 18, 2009, P.E. met Green outside her apartment door and invited him 

inside because she was new to the apartment complex and wanted to meet other residents. 

P.E. had two other friends with her, and she and Green eventually drove P.E.’s friends to 

a nearby club. After P.E. and Green returned to P.E.’s apartment, they smoked crack 

cocaine. Green then left P.E.’s apartment but told her that he would be back.

Hours later, Green returned and asked P.E. if he could use her phone. As P.E. 

began to retrieve her phone from her purse, Green came up behind her and began to 

strangle her with a belt from her robe. After he threatened to cut her, Green forced P.E. 

to perform oral sex on him. Green then gagged P.E. with an electrical cord, pulled off 

her clothing, and raped her.

After raping P.E., Green took her car keys and cell phone from her purse. Green 

left P.E.’s apartment, and P.E. put on clothing and chased after him, but once outside, she 

saw Green driving away in her car. P.E. then called 911 to report the rape and auto theft. 

P.E. told the responding officer that a man named K.G. had raped her and stolen her car. 

The officer observed that P.E. had red marks on the outside of her lips that extended 
3

down to her chin, red marks on her neck, an abrasion on her elbow, and bruising on her 

arms. Tr. p. 114. 

The officer sent P.E. to Methodist Hospital for a sexual assault examination. The 

forensic nurse examiner also observed the red marks near P.E.’s mouth, chin and neck, 

which she concluded were consistent with “marks made by strangulation by ligature.” Tr. 

p. 225. The nurse examiner also observed injuries and abrasions to P.E.’s vagina, which 

were consistent with “blunt force trauma” and in the area of the vagina that is typically 

injured during a sexual assault. Tr. pp. 235, 238.

On October 19, 2010, Green was charged with Class A felony rape, Class A 

felony criminal deviate conduct, Class B felony robbery, Class D felony strangulation, 

Class D felony criminal confinement, and Class D felony auto theft. After a two-day jury 

trial, Green was found guilty of rape, strangulation, criminal confinement, and auto theft, 

but was acquitted of criminal deviate conduct and robbery.

Green’s sentencing hearing was held on June 16, 2011. Although Green’s counsel 

did not argue for any mitigating circumstances, the trial court considered Green’s 

substance abuse as a mitigating factor. But the trial court determined that Green’s 

criminal history, consisting of several misdemeanor and felony convictions as well as 

probation revocations, outweighed that mitigating circumstance. The court then ordered 

Green to serve concurrent sentences of forty years for Class A felony rape and three years 

for Class D felony auto theft. The trial court declined to enter judgment on the 

strangulation and criminal confinement counts due to double jeopardy concerns. Green 
4

was also ordered to register as a sex offender and found to be a sexually violent predator. 

Green now appeals his rape and auto theft convictions and his sentence.

I. Sufficient Evidence

Green first argues that the evidence is insufficient to support his conviction for 

Class A felony rape. Upon a challenge to the sufficiency of evidence to support a 

conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; 

instead, we respect the exclusive province of the jury to weigh any conflicting evidence. 

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative 

evidence and reasonable inferences supporting the verdict, and we will affirm if the 

probative evidence and reasonable inferences drawn from the evidence could have 

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. 

Id. 

A person who knowingly or intentionally has sexual intercourse with a member of 

the opposite sex when the other person is compelled by force or imminent threat of force 

commits Class B felony rape. Ind. Code Ann. § 35-42-4-1(a) (2004). But the offense is a 

Class A felony if “it is committed by using or threatening the use of deadly force.” Id.; 

see also Appellant’s App. p. 21. Green concedes that he had sexual intercourse with P.E. 

but argues that the sex act was consensual.

 To support his argument, Green relies on his own self-serving trial testimony that 

P.E. agreed to have sexual intercourse with him in exchange for crack cocaine. See

Appellant’s Br. at 7. Although Green acknowledges our well-established standard of 

review in reviewing challenges to sufficiency of the evidence, he attempts to circumvent 
5

the standard by arguing that the evidence adduced is subject to the incredible dubiosity 

rule.

Although appellate courts generally do not impinge upon a jury’s function to judge 

the credibility of a witness, we may apply the “incredible dubiosity” rule to assess 

witness credibility. Surber v. State, 884 N.E.2d 856, 868 (Ind. Ct. App. 2008), trans. 

denied.

Under the incredible dubiosity rule, if a sole witness presents inherently 

improbable testimony and there is a complete lack of circumstantial 

evidence, a defendant’s conviction may be reversed. This is appropriate 

only where the court has confronted inherently improbable testimony or 

coerced, equivocal, wholly uncorroborated testimony of incredible 

dubiosity. Application of this rule is rare and the standard to be applied is 

whether the testimony is so incredibly dubious or inherently improbable 

that no reasonable person could believe it.

Id. at 869. And the incredible dubiosity rule has been limited to situations where the 

witness’s testimony is inherently contradictory, meaning that he contradicts himself in a 

single statement or while testifying, not via multiple statements. Glenn v. State, 884 

N.E.2d 347, 356 (Ind. Ct. App. 2008), trans. denied. See also Buckner v. State, 857 

N.E.2d 1011, 1018 (Ind. Ct. App. 2006) (stating that the incredible dubiosity rule applies 

to conflicts in trial testimony rather than conflicts between pretrial and trial testimony).

We first observe that Green has not argued that P.E.’s trial testimony was 

inconsistent or contradictory. In fact, P.E.’s testimony concerning Green’s criminal 

conduct while inside her apartment was entirely consistent. But Green argues that P.E.’s 

testimony is “inherently improbable” because she did not tell the responding officer that 

she and Green had smoked crack cocaine together earlier that day. 
6

Green’s incredible dubiosity argument is completely inapposite when considered

in light of the fact that the responding officer and forensic nurse examiner observed 

P.E.’s physical injuries that corroborated her testimony that Green strangled her, gagged 

her with an electrical cord, and raped her. And investigating officers found the belt of a 

robe and a broken electrical cord in P.E.’s bedroom. In addition to this testimony, the 

jury was provided with photographic evidence of P.E.’s injuries. 

For all of these reasons, we conclude that the principle of incredible dubiosity is 

inapplicable, and the evidence was sufficient to support Green’s Class A felony rape 

conviction.1

Green also argues that his auto theft conviction is not supported by the evidence 

despite his admission at trial that he took P.E.’s car, albeit allegedly with her permission, 

and did not return it to her.2 Green again argues that P.E.’s testimony was “so inherently 

improbable that no reasonable person could believe it.” Appellant’s Br. at 10. 

P.E. testified that Green took her car keys without her permission and stole her car. 

There is nothing in the record that would lead us to conclude that her testimony was 

incredibly dubious. Therefore, we conclude that the evidence is sufficient to support 

Green’s Class D felony auto theft conviction.

II. Inappropriate Sentence

 1 Green also attempts to support his argument concerning the credibility of P.E.’s testimony by noting that 

the jury acquitted him of criminal deviate conduct and robbery. But our supreme court has held that 

“[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, 

contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). 

2 Indiana Code section 35-43-4-2.5 provides that “[a] person who knowingly or intentionally exerts 

unauthorized control over the motor vehicle of another person, with intent to deprive the owner of [] the 

vehicle’s value or use . . . commits auto theft, a Class D felony.”
7

Green finally argues that his forty-year aggregate sentence is inappropriate in light 

of the nature of the offense and the character of the offender.3 Although a trial court may 

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 

of the Indiana Constitution authorize independent appellate review and revision of a 

sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 

2009) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). This appellate 

authority is implemented through Indiana Appellate Rule 7(B), which provides that a 

court “may revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of 

the offense and the character of the offender.” Anglemyer, 868 N.E.2d at 491. 

However, “we must and should exercise deference to a trial court’s sentencing 

decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision 

and because we understand and recognize the unique perspective a trial court brings to its 

sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The 

burden is on the defendant to persuade us that his sentence is inappropriate. Reid v. State, 

876 N.E.2d 1114, 1116 (Ind. 2007). Finally, although we have the power to review and 

 3 Specifically, Green argues:

it seems that under the circumstances, even if there was no specific agreement for sex, 

her behavior may have suggested to the Defendant some entitlement to sex-for-drugs. 

The world of crack cocaine is a sleazy one where the normal conventions of respect and 

concern for others do not flourish. This is noted not to pose any legal defense or to 

excuse Mr. Green’s behavior, but only to provide the context in which the crime 

occurred. These circumstances surrounding this offense would distinguish it from 

other cases of rape. They should compel a less severe sentence than the one imposed 

here.

Appellant’s Br. at 14. Green’s argument is offensive and is not effective appellate advocacy.
8

revise sentences, “[t]he principal role of appellate review should be to attempt to leaven 

the outliers, and identify some guiding principles for trial courts and those charged with 

improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in 

each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

“A person who commits a Class A felony shall be imprisoned for a fixed term of 

between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) 

years.” I.C. § 35-50-2-4 (2011). Green was ordered to serve forty years for his Class A 

felony rape conviction. He was also ordered serve a concurrent three-year term for his 

Class D felony auto theft conviction, which is the maximum sentence for a Class D 

felony. See I.C. § 35-50-2-7 (2011).

Green’s character fully supports the trial court’s decision to impose a forty-year 

sentence. Thirty-two-year-old Green has demonstrated his inability to lead a law-abiding 

life. His first conviction occurred in Illinois in 1995. Specifically, Green was convicted 

of felony theft. One year later, he was convicted of felony residential burglary. He was 

discharged from the Illinois prison system in December 2001. Since that time it appears 

he has resided in Indiana where he has committed (in order of conviction): Class A 

misdemeanor criminal conversion, Class A misdemeanor criminal trespass, Class D 

felony theft, Class D felony possession of cocaine, and Class A misdemeanor invasion of 

privacy. Green also has several probation violations and revocations, and his presentence investigation reports lists several violations of Indiana Department of Correction 

conduct rules. Finally, Green indicated no past employment but that he earned anywhere 

from $1,000 to $15,000 per month selling drugs. 
9

The nature of the offense was also particularly violent. Green strangled P.E. to the 

point where she could barely breathe, and shoved an electrical cord in her mouth to gag 

her. He also threatened to cut her if she did not perform oral sex on him. He continued 

to strangle P.E. while he forced her to perform oral sex and to submit to sexual 

intercourse. 

For all of these reasons, we conclude that Green’s aggregate forty-year sentence is 

not inappropriate in light of the nature of the offense and the character of the offender.4

Conclusion

The evidence is sufficient to support Green’s rape and auto theft convictions and 

his aggregate forty-year sentence is not inappropriate in light of the nature of the offense 

and the character of the offender.

Affirmed. 

FRIEDLANDER, J., concurs.

RILEY, J., concurs in result.

 4 Green’s request that our court consider prior plea negotiations with the State in our consideration of the 

appropriateness of his sentence following a fully completed jury trial is absurd.